A Magistrate Court in Port Harcourt, Rivers State, on Tuesday, struck out in its entirety, the criminal charges earlier preferred against the Nigerian Liquefied Natural Gas Limited (NLNG), its former Managing Director, Tony Attah and General Counsel, Akachukwu Nwokedi.
The Chief Magistrate, Blessing Vick-Jumbo, agreed with the defendants that the complainant failed to satisfy Section 89(5) of the Administration of Criminal Justice Law of Rivers State, which stipulated that there had to first be a police investigation before the court could deal with private prosecution and consequently struck out the charges.
An indigenous vendor of Nigeria LNG Ltd, Macobarb International Ltd and its Managing Director, Ogboru Shedrack, had initiated criminal proceedings against NLNG and its aforementioned officers through private prosecution, alleging the offence of obtaining by false pretense against the three.
NLNG and its staff had filed an objection to the suit on the ground that a statutory condition precedent to private prosecution under Administration of Criminal Justice Law of Rivers State had not been satisfied and that the suit was statute barred under the Law. It was also contended that the elements of obtaining by false pretense did not exist in the charges.
NLNG had based on its commitment to promoting local content in Nigeria, awarded to Macobarb, a contract valued at N95,479,057.86, to be completed within a duration of 18 (eighteen) months in January 2014.
Unfortunately, the vendor failed to meet the terms of the contract executed by the parties, including procuring a Performance Bond and performing its obligations under the contract. But NLNG claimed it was constrained to terminate the contract after extending periods of grace to the vendor.
After it terminated the contract, Macorbarb wrote several petitions against NLNG to the Senate Committee on Gas; House of Representatives Committee on Public Petitions; House of Representatives Committee on Local Content; Rivers State House of Assembly; Independent Corrupt Practices Commission; Attorney General of the Federation and Minister of Justice; Honourable Minister of State for Petroleum Resources; Nigerian Content Development and Monitoring Board and Nigerian National Petroleum Corporation.
NLNG had, however, contended that in all its petitions to the various authorities, Macobarb never accused it of obtaining by false pretence or any crime. Rather, the petitions pleaded for payments of monies due to it.
In one of such petitions addressed to the Attorney General of the Federation and Minister of Justice, Malam Abubakar Malami, and dated 24th January 2018, Macobarb stated that, “NLNG, inexplicably and through a staff, the head of project support services without justification, executed series of consecutive payment denials on its contract for works Macobarb performed and demanded payments. NLNG failed to pay Macobarb for work done on contracted as deliberately orchestrated.”
In the meantime, NLNG has taken out a writ in the Rivers State High Court Judicial Division against Macobarb and Ogboru Shedrack for alleged defamation arising from Macobarb’s petitions and publications in the media.
In the suit filed by its lawyers, Babalakin & Co, the NLNG is seeking general, aggravated and exemplary damages of N400,000,000.00 from the defendants. The suit is yet to be assigned to a judge.
The Magistrate Court, it would be recalled, had in January reserved ruling in the case of alleged obtaining by false pretence brought against the NLNG, Attah, and Nwokedi, for February 7, 2022.
Arguments had commenced before Chief Magistrate Vick-Jumbo, in respect of the preliminary objection filed by the NLNG, Attah, and Nwokedi, regarding the criminal summons, issued against them by one of its vendors, Macobarb International Ltd and its Managing Director, Ogboru Shedrak, as complainants.
The preliminary objection dated December 8, 2021, was supported with an affidavit and a further affidavit dated 8th and 20th December 2021 respectively.
Arguing the objection in court, Dr. Bayo Adaralegbe, submitted that the complaint was based on a contract awarded by NLNG to the vendor, which NLNG terminated due to lack of performance.
The vendor had petitioned at least, 10 federal and state government agencies, characterising the dispute between the parties as one of breach of contract.
He submitted that the facts could not have given rise to the offence as obtaining by false pretence under the Criminal Code of Rivers State as alleged by the complainant.
Counsel for the NLNG argued further that the complainant failed to satisfy Section 89(5) of the Administration of Criminal Justice Law of Rivers State, which stipulated that there had to first be a police investigation before the court could deal with private prosecution.
He argued further that based on Section 92 of the Administration of Criminal Justice Law, the complaint was statute barred, and having been filed outside the maximum six years permitted by law and urged the court to quash the charge.
Responding, M. Uzoma, who appeared for the complainants, argued that despite the objection, the court should proceed with prosecution.
Macobarb International Limited, an oil services firm, and two others, had dragged the NLNG Limited with Attah and Nwokedi before the Rivers Magistrate Court over an alleged breach of contract.
In a criminal summons before the court and filed by the firm against NLNG, the firm claimed infractions through obtaining by false pretence.
“Complaint has been made this day by Macobarb International Limited and Ogboru Shedrack, that you, Nigeria LNG Ltd, on the various dates inclusive the month of April, 2018 and December, 2020 and at various fora, inclusive in Bayelsa and Port Harcourt, Rivers State, of the above mentioned Magisterial District did:
“By way of false pretence, fraudulent tricks and misrepresentations ‘which you knew to be false working in conjunction with NIGERIA LNG LTD and Mr. Tony Attah, prompted the complainants to mobilise both equipment and personnel to the contract site at their expense on false representation that they would be paid on ‘work done’ as defined in your contract documents with monetary valuation of ‘work done’ assessed at various sums inclusive that of N32,079,723.10, N33,588,401.76 amongst other monetary sums incurred by the complainants and of which the complainants were tricked and not paid.
“You are hereby summoned to appear before the Chief Magistrate Court sitting at Court 12 PH on 9th day of December, 2021 at the hour of 9am to answer to the said complaint”, it said.
But an affidavit filed in support of its preliminary objection by Toochukwu Nwankwo, of the law firm of Babalakin and Co, on behalf of the defendants, said the counter affidavit deposed to by the 2nd Respondent, Ogboru Shedrack, was false and calculated to mislead the court.
“I earlier deposed to an affidavit dated 8th December 2021 in support of the Notice of Preliminary Objection filed in this suit and I have read the 13 paragraphs counter affidavit deposed to by Ogboru Shedrack, the 2nd Respondent dated 13th December 2021 on behalf of the 1st & 2nd Complainants/Respondents and I verily believe that the depositions in the said counter-affidavit are false and calculated to mislead this Honourable Court,” he averred.
Thus, based on the submissions of the defendants, citing failure to satisfy requisite grounds, the court struck out all the criminal charges in their entirety.